Hearing on Monsanto lawsuit deal begins Monday

CHARLESTON, W.Va. -- A hearing begins Monday to determine whether a multimillion-dollar settlement in the huge class-action Monsanto dioxin lawsuit should be approved.

The judge must decide if the settlement reached Feb. 24, after nearly a decade of litigation, is fair, reasonable and adequate.

Under the tentative agreement, chemical giant Monsanto will provide class-members up to $93 million. The company has agreed to a 30-year medical monitoring program with a primary fund of $21 million for testing, and up to $63 million in additional funding, if necessary. It also has agreed to spend $9 million cleaning 4,500 homes.

The settlement also would allow residents to retain their right to file personal-injury lawsuits against Monsanto if medical tests turn up illnesses potentially related to dioxin exposure.

Word of the settlement emerged on the eve of an expected six-month trial in a case in which Nitro-area residents sought medical monitoring for dioxin-related illnesses and a cleanup of what they argue is a contaminated community.

Before an agreement in a class-action lawsuit is finalized, the members of the class must be notified of the proposed settlement and given a chance to object to its terms.

Expert testimony must be presented to prove the settlement is appropriate and that the testing procedures of the medical monitoring match the benefits that originally were sought, among other things.

In their lawsuit filed in 2004, Nitro residents said Monsanto unsafely burned dioxin wastes and spread contaminated soot and dust across the city, polluting homes with unsafe levels of the chemical.

For more than 50 years, the Monsanto plant in Nitro churned out herbicides, rubber products and other chemicals. The plant's production of the defoliant Agent Orange created dioxin as a toxic chemical byproduct.

The lawsuit sought medical monitoring for at least 5,000 -- and perhaps as many as 80,000 -- current and former Nitro residents.

"Class Counsel has handled numerous cases of this type over many decades and fully appreciates the strengths and weaknesses of Plaintiffs' case, the challenges he faces in prevailing during a lengthy trial, and the very real risk that the class members he has aggressively represented and whose cause he has championed for many years may end up with nothing," Stuart Calwell, the lead plaintiff's attorney, wrote in a brief urging Circuit Judge Derek Swope to approve the deal.

Thomas Urban, an Arlington, Va., attorney who represents a group of class members who object to the settlement, has raised numerous questions about the fairness of the settlement.

Urban says he doesn't think the medical monitoring and cleanup provisions are adequate, because it covers residents within a smaller area than was included in the original class-action area.

The property cleanup portion of the settlement was unforeseen after Judges O.C. Spaulding and Swope issued rulings last year that threw out that part of the case. Even though the decertification of the property class had been appealed, a Supreme Court decision probably wouldn't have happened anytime soon.

Swope has written in court documents that the challenge to the settlement puts attorneys for the class and Monsanto in the awkward position of advocating the settlement terms when, by their nature, they are different from the positions taken in the litigation.

Other issues to be decided at the hearing include the logistics of how class members will be notified, how medical monitoring and clean up will be accomplished and the cost associated with those efforts.